LLB202 Study Guide - Final Guide: Australian Consumer Law, All England Law Reports
1. Misrepresentation: Misleading or deceptive conduct
A false statement made to induce a party to enter into a contract may be actionable under the
common law of misrepresentation or the Australian Consumer Law.
8.1 Common Law misrepresentation
A Party who alleges misrepresentation must normally prove:
1. A false Statement of past or existing fact
2. Which is addressed to the representee – must be addressed to the plaintiff, rather than
someone else who tells the plaintiff
3. Before or when the contract is made – couldn’t induce the contract if it was made
after; and
4. Which was intended to induce and in fact induced the representee to make the contract
8.1.1 A false statement of existing or past fact
The statement made by the representor must actually be false in fact. No claim is available
for a representation which is true. Conduct can constitute a representation, especially when
made in response to a question. Whether a representation was in fact made and is false will be
determined objectively. Conduct is sufficient.
Statements which do not constitute a misrepresentation
Statement of future intent, promise or assurance
A statement which amounts to an assurance or a promise not to do a certain act in future will
not amount to a misrepresentation. The question involves more than an analysis of the
grammar but requires an interpretation of the intended meaning (Balfour & Clark v Hollandia
Ravensthorpe NL).
Statement of opinion
In order to determine whether a statement is fact or opinion the precise words of the
representation must be considered. This includes the form in which the statement was made,
the personal knowledge of the person making the statement and the subject matter of the
statement.
The expression of an opinion or belief cannot amount to a misrepresentation unless fraud can
be established or the opinion was unreasonably held
Bisset v Wilkinson (1926) All ER 343): both parties had no knowledge of sheep farming so
opinion was merely an opinion or the representor had no facts to support such an opinion
Fitzpatrick v Michael (1928) 28 SR (NSW) 285
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
A false statement made to induce a party to enter into a contract may be actionable under the common law of misrepresentation or the australian consumer law. 8. 1. 1 a false statement of existing or past fact. The statement made by the representor must actually be false in fact. No claim is available for a representation which is true. Conduct can constitute a representation, especially when made in response to a question. Whether a representation was in fact made and is false will be determined objectively. A statement which amounts to an assurance or a promise not to do a certain act in future will not amount to a misrepresentation. The question involves more than an analysis of the grammar but requires an interpretation of the intended meaning (balfour & clark v hollandia. In order to determine whether a statement is fact or opinion the precise words of the representation must be considered.
